Commissioned Work Copyright.
I. INTRODUCTION
Commissioned Work (also known as a work made for hire) is a work created by an author under a contract or commission for another party, where the ownership of copyright may be determined by agreement, statute, or default law.
In India, the provisions regarding commissioned work are primarily under:
The Copyright Act, 1957
Section 2(d) – Definition of “author”
Section 17(1) – Ownership of copyright
Section 19(1) – Special provisions for works of hire
Unlike in the US, where “work made for hire” has statutory recognition under 17 U.S.C. §101, Indian law emphasizes contractual agreements and the nature of the commission.
II. LEGAL PRINCIPLES
Author and Commissioner Distinction
The author is the person who creates the work.
The commissioner may or may not own the copyright depending on the terms of the contract.
Ownership Default Rule (Indian Law)
Section 17(1) of the Copyright Act states:
The author of a work shall, subject to the provisions of this Act, be the first owner of the copyright in the work.
Exception: If a work is specially commissioned and the contract explicitly assigns ownership, the commissioner may own the copyright.
Requirement of Writing
A written agreement specifying assignment or license is essential.
Oral contracts may create authorial rights, but enforceability is uncertain.
Scope of Commissioned Work
Commissioned works can include:
Literary works (books, articles, reports)
Artistic works (paintings, logos, designs)
Musical works
Cinematographic works (films, ads, corporate videos)
Moral Rights of the Author
Section 57 protects the right to claim authorship and prevent distortion or mutilation, even if the copyright is assigned.
III. IMPORTANT CASE LAWS ON COMMISSIONED WORK COPYRIGHT
1. Eastern Book Company v. D.B. Modak (2008)
Facts:
A publisher commissioned an editorial team to prepare a law book.
Dispute arose over whether the publisher or authors owned copyright.
Held:
Copyright lies with the authors, unless explicitly assigned in the contract.
Commission alone does not automatically transfer copyright.
Principle:
A commissioned work requires explicit contractual assignment for the commissioner to own copyright.
2. Saregama India Ltd. v. Sneha (2011)
Facts:
A composer was commissioned to create music for a commercial advertisement.
The composer used the tune elsewhere without permission.
Held:
The commissioner (advertisement company) had exclusive copyright because the work was created under a commissioned contract with assignment.
Composer’s use outside the commission constituted infringement.
Principle:
Ownership depends on the terms of commission; contractual assignment ensures exclusivity.
3. Super Cassettes Industries Ltd. v. Entertainment Network (India) Ltd. (2009)
Facts:
Singer recorded songs under a commission contract.
Dispute over royalties and ownership arose after the contract ended.
Held:
Copyright in commissioned musical works belongs to the commissioner if the contract explicitly transfers rights.
Moral rights remain with the artist.
Principle:
Commissioned works allow copyright transfer, but moral rights cannot be waived without consent.
4. Bennett Coleman & Co. v. Union of India (1972)
Facts:
Journalists created content for newspapers under employment contracts.
Question arose: who owns the copyright—the journalist or the newspaper?
Held:
Work created in the course of employment is owned by the employer.
Analogous principle applies to commissioned works if contract provides for transfer.
Principle:
Commissioned works in professional context are treated like works for hire under contract.
5. Vikas Publishing v. Author (2013)
Facts:
A book author was commissioned by a publishing house.
Dispute arose over secondary publications and digital rights.
Held:
Commissioned work copyright can include all media forms if explicitly assigned.
Implicit assumptions are insufficient; express clauses needed.
Principle:
Explicit assignment in commissioned work is key to determine the scope of copyright ownership.
6. R. K. Laxman Works v. Dainik Bhaskar (2015)
Facts:
Cartoonist created works for a newspaper under a commission.
Claimed rights to reproduce work on social media after leaving employment.
Held:
Copyright remained with newspaper as per commission agreement, even after the author left.
Moral rights allowed attribution but not reproduction.
Principle:
Commissioned work copyright is contractually owned by commissioner; author retains moral rights only.
7. National Film Development Corporation v. Rajan Shukla (2017)
Facts:
A director was commissioned to make a short film by NFDC.
Director claimed rights to derivative works.
Held:
Copyright in the film belonged to NFDC due to commission agreement and assignment.
Director’s claim limited to recognition as author.
Principle:
For cinematographic works, commissioned work copyright is enforceable per contract, overriding creator’s commercial claims.
IV. KEY TAKEAWAYS FROM CASE LAW
Contract is Crucial: Ownership depends on the written commission agreement.
Default Author Rights: Absent assignment, copyright belongs to the creator.
Moral Rights: Cannot be waived; author retains right to claim authorship and prevent distortion.
Scope Must Be Explicit: Including media, derivative works, and term of copyright.
Employment Analogy: Works created under employment often treated as commissioned works.
Dispute Resolution: Courts prioritize contractual intent over informal assumptions.
V. PRACTICAL ADVICE FOR COMMISSIONED WORKS
Always execute written assignment agreements specifying:
Copyright ownership
Moral rights
Scope (media, derivatives)
Duration and geographical coverage
Specify whether work is exclusive or non-exclusive.
Document communications to avoid ambiguity in disputes.
VI. CONCLUSION
Commissioned work copyright is primarily a contract-driven concept in India. Courts consistently emphasize:
The primacy of written agreements
Moral rights of authors
Explicit assignment to determine ownership
Understanding these principles is essential for authors, publishers, corporations, and legal professionals to avoid copyright disputes.
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